Opinion
NO. 2018-CA-001243-MR
03-13-2020
TERRY ROBERT MURRAY APPELLANT v. KEITH HELTON, WARDEN; AND EDDIE L. PAYNE, ADJUSTMENT OFFICER APPELLEES
BRIEFS FOR APPELLANT: Andrea Reed Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEES: Allison R. Brown Department of Corrections Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT COSTANZO, JUDGE
ACTION NO. 18-CI-00083 OPINION
AFFIRMING
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BEFORE: KRAMER, MAZE, AND L. THOMPSON, JUDGES. MAZE, JUDGE: Appellant, Terry Robert Murray, appeals the Bell Circuit Court's order dismissing his petition for declaration of rights. For the following reasons, we affirm.
BACKGROUND
On December 18, 2017, Murray, who was an inmate at the Bell County Forestry Camp (BCFC), received two disciplinary reports for possessing or promoting dangerous contraband. On that day, Murray was assigned to work detail at the Bell County School Bus Garage. While at work, correctional officers conducted a search of the common area where Murray worked and performed a strip search of Murray. In the first disciplinary report, written by Corrections Officer (C/O) Matthew Tuttle, Murray's jacket was searched in the common area and found to contain a pack of cigarettes and a lighter. In the second disciplinary report, written by another corrections officer, Murray had his hand on top of a block wall in the bathroom during the search. When the officer looked on top of the wall, a cell phone was found where Murray's hand had been.
Both disciplinary reports were investigated by Corrections Sergeant Samuel D. Partin. When the disciplinary reports were read to Murray, he stated the coat in which the lighter was found was not his, that he found the phone and intended to show it to the officers, and he did not possess the phone other than showing it to the officers. Based on Sgt. Partin's investigation, Murray was charged with two counts of possessing or promoting dangerous contraband, which is known as a Category VI-03 charge. Murray signed each disciplinary report, acknowledging that: (1) he received a copy of the report; (2) he had been advised of his right to call witnesses and to have an inmate legal aide or staff representative present at his hearing; (3) he understood it was his responsibility to make arrangements for inmate legal aide representation and witnesses; and (4) he waived twenty-four-hour notice of the hearing.
Murray's disciplinary hearing took place two days later, on December 20, 2017. Murray appeared with an inmate legal aide before Lieutenant Eddie Payne with the prison's Adjustment Committee. Based on C/O Tuttle's report, Sgt. Partin's investigation of the report, and the lighter being in Murray's possession and/or jacket, Lt. Payne found Murray guilty of the charge regarding possession of the lighter. Murray's punishment was the loss of 180 days of good time credit. Lt. Payne also found Murray guilty of the charge regarding the cell phone for which Murray lost 180 days of good time credit and received 30 days' segregation.
Murray timely appealed each of Lt. Payne's findings to Warden Keith Helton. In his appeal of the first disciplinary report, Murray claimed the jacket in which the lighter was found did not belong to him. In his appeal of the second disciplinary report, Murray admitted possessing the cell phone but requested Warden Helton to reduce or suspend his sentence. Warden Helton denied both of Murray's appeals, finding the evidence was sufficient to establish guilt and concluding Murray had received due process.
On April 2, 2018, Murray filed a petition for declaration of rights, pursuant to Kentucky Revised Statutes (KRS) 418.040, against Warden Helton and Lt. Payne. In his petition, as in his appeal to the Warden, Murray argued the lighter did not belong to him. Murray's petition also asserted multiple other grounds for relief, which were not asserted in his appeal to the Warden.
In response to Murray's petition, Helton and Payne filed a motion to dismiss, pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f), for failure to state a claim upon which relief can be granted and for failure to exhaust administrative remedies. Specifically, Helton and Payne argued that Murray could not raise issues in the circuit court that had not been raised in his appeal to the Warden. Murray tried to raise other issues by attaching documents to his petition for declaration of rights, but the documents post-dated the Warden's decision denying Murray's appeal. Accordingly, Helton and Payne argued that Murray failed to exhaust his administrative remedies as to those issues. And, as to the claim the lighter was not his, Helton and Payne argued that Lt. Payne gave more credence to C/O Tuttle's disciplinary report and Sgt. Partin's investigation than to Murray's statements, so evidence supported the charge.
The circuit court agreed with Helton and Payne and granted their motion to dismiss on August 1, 2018. This appeal followed.
STANDARD OF REVIEW
Prisoners possess a liberty interest in their statutorily provided good time credits. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed. 2d 935 (1974). A prisoner may not be deprived of those credits without due process. Id. However, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. at 556, 94 S.Ct. at 2975; see also Webb v. Sharp, 223 S.W.3d 113 (Ky. 2007). The decision to revoke a prisoner's good time credits need only be supported by "some evidence." The United States Supreme Court explained this "some evidence" standard in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985):
Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. . . . The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact.Id. at 455-56, 105 S.Ct. at 2774 (internal citations omitted). So, a decision to revoke good time credits only violates due process if the record is wholly devoid of evidence and provides no support for the decision of a disciplinary board. Id. at 457, 105 S.Ct. at 2775.
ANALYSIS
As an initial matter, we note that Murray is only appealing the charge regarding possession of the lighter and the subsequent penalty of 180 days of good time credit loss. He is not appealing the charge regarding the cell phone.
Murray advances two arguments in his appeal of the charge regarding the lighter. For his first argument, he claims the lighter was found in a jacket at Bell County School Bus Garage, a job-site twenty miles from the detention facility where he lives. Murray asserts that, pursuant to KRS 520.010(4), which defines a "detention facility" as any place "used for the confinement of a person," finding a lighter, miles away from where he lives, does not constitute possession or promotion of dangerous contraband within the detention facility. Murray further asserts that a lighter is not dangerous contraband because it could not endanger the safety or security of his detention facility, which was miles away. For his second argument, Murray claims neither the lighter nor the jacket it was found within belonged to him. The officers did not prove the jacket or lighter belonged to him because he was not wearing the jacket and it did not have his name on it. Instead, the jacket was found in a common area shared by six other inmates and work staff.
In response to the first argument, Helton and Payne claim that Murray failed to raise this issue in his appeal to the Warden, so he is precluded from raising it now, pursuant to KRS 454.415. Under that statute, a court is bound to dismiss an action when an inmate fails to exhaust his administrative remedies. See Thrasher v. Commonwealth, 386 S.W.3d 132, 134 (Ky. App. 2012). In relevant part, KRS 454.415 states:
(1) No action shall be brought by or on behalf of an inmate, with respect to:
(a) An inmate disciplinary proceeding;
(b) Challenges to a sentence calculation;
(c) Challenges to custody credit; or
(d) A conditions-of-confinement issue;
Accordingly, Murray was required to raise all claimed errors in his appeal to the Warden in order to exhaust his administrative remedies in his challenge to the decision of the disciplinary board. See Houston v. Fletcher, 193 S.W.3d 276, 278 (Ky. App. 2006).
until administrative remedies as set forth in the policies and procedures of the Department of Corrections, county jail, or other local or regional correctional facility are exhausted.
. . .
(4) A court shall dismiss a civil action brought by an inmate for any of the reasons set out in subsection (1) of this section if the inmate has not exhausted administrative remedies[.]
Compliance with KRS 454.415 is mandatory, as this Court held in Thrasher v. Commonwealth, in which we affirmed a circuit court's dismissal of an inmate's declaration of rights petition for failure to exhaust administrative remedies. In his appeal to the Warden, Murray did not argue that recovering a lighter, miles away from the detention facility, does not constitute possession or promotion of dangerous contraband. He also failed to argue that a lighter should not be considered "dangerous contraband." Thus, we agree with the circuit court that Murray failed to exhaust his administrative remedies as required by KRS 454.415.
Murray attempts to save this argument by claiming he raised it in his "Reconsideration or Continuation of the Appeal" letter to Warden Helton, which was sent within fifteen days of the disciplinary hearing and, thus, should have been considered part of his appeal to the Warden. The problem with this reasoning is that the Warden had already ruled on Murray's appeal by the time he received this "reconsideration" document wherein Murray raised other issues. The Department of Corrections Policies and Procedures (CPP) 15.6 does not permit an appeal beyond the Warden, so this "reconsideration" document served no role in the appeal. See CPP 15.6(II)(F)(7). Yet, if the Warden chose, he could have vacated the disciplinary report or allowed a re-investigation or re-hearing, pursuant to CPP 15.6(II)(F)(8), but Warden Helton did not take any of these actions after receiving Murray's "reconsideration" document. Thus, the issues raised in Murray's appeal, not the "reconsideration" document, control.
Next, we turn to Murray's second argument, which was properly preserved in his disciplinary appeal, that insufficient evidence supported the finding that he possessed the lighter. In response to this argument, Helton and Payne claim that Murray received due process because "some evidence" supported the decision of the disciplinary body. C/O Tuttle discovered the jacket with the lighter in it and wrote his findings in a disciplinary report:
Description of Incident: On 12-18-17, at approximately 10:19 AM, I, C/O Tuttle, was conducting a search of I/m (inmate) Terry Murray #275875 work station inside the Bell County Bus Garage. While searching, I, C/O Tuttle, found I/m Murray's jacket which contained a pack of cigarettes, and a lighter in the pocket. For this reason I/m Murray is receiving this disciplinary report.Sgt. Partin investigated the incident and found sufficient evidence to believe the report. Then, Murray had a disciplinary hearing where he received advanced notice of the charges, had an opportunity to call witnesses and present documentary evidence in his defense, and had an inmate legal aide present with him. At the disciplinary hearing, Lt. Payne believed C/O Tuttle's report and Sgt. Partin's findings more believable than Murray's statement that the jacket and lighter were not his. Furthermore, Helton and Payne note that Murray had an opportunity to call C/O Tuttle at the disciplinary hearing to question why he believed the jacket and lighter belonged to Murray, but Murray failed to take advantage of this opportunity. So, the statements of C/O Tuttle and Sgt. Partin, coupled with Lt. Payne's credibility determination, provided more than "some evidence" of Murray's guilt.
Based on C/O Tuttle's report, Sgt. Partin's investigation, Lt. Payne's review, and Warden Helton's review on appeal, we conclude that the standard requiring "some evidence" was met. Reinforcing this standard of "some evidence," we observe that the disciplinary report mentions a photo of the evidence and a chain of custody. Neither the photo nor the chain of custody were attached to the disciplinary report that Murray attached to his appellate brief. However, the underlying record includes the "Bell County Forestry Camp, Chain of Custody, Evidence Locker Log" with the disciplinary report. Within this chain of custody form, the lighter is described and noted to have been found in "I/M Terry Murray #275875 jacket." This form indicates that C/O Tuttle recovered the evidence and includes the date and time the evidence was recovered, as well as the signature of C/O Tuttle, verifying that all the information is correct. This furthers the "some evidence" standard to support the decision finding Murray guilty of possessing the lighter.
CONCLUSION
Because Murray failed to state a claim and failed to exhaust his administrative remedies, the circuit court did not err in dismissing his petition for declaration of rights. For the foregoing reasons, we affirm the Bell Circuit Court's order.
ALL CONCUR. BRIEFS FOR APPELLANT: Andrea Reed
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEES: Allison R. Brown
Department of Corrections
Frankfort, Kentucky